may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Robert J. Morgan, et al.,
County of Rice, et al.,
Husting and Engstrom, Inc.,
Filed February 11, 1997
Affirmed in part, reversed in part, and remanded
Rice County District Court
File No. C3951050
James M. Williams, The Carriage House, 212 West Franklin Avenue, Minneapolis, MN 55404 (for Appellants)
Arvid L. Wendland, 825 East Second Street, P.O. Box 247, Blue Earth, MN 56013 (for Respondents County of Rice, et al.)
Stephen P. Rolfsrud, Esq., James H. Turk, 127 South Second Street, P.O. Box 3049, Mankato, MN 56002-3049 (for Respondent Husting and Engstrom)
Considered and decided by Crippen, Presiding Judge, Short, Judge, and Foley, Judge.[*]
Appellants Robert and Evelyn Morgan brought an action against the County of Rice, its former highway engineer Charles Schmidt, and the construction firm of Husting and Engstrom, Inc., alleging that regrading work by the county on the intersection abutting their property caused them damage in the form of poor drainage, unsafe egress, and loss of aesthetics. The trial court determined that appellants' complaint was barred by the two-year statutes of limitations, Minn. Stat. §§ 541.07(6), 541.051, subd. 1(a) (1994), and granted summary judgment for the respondents. Appellants claim, among other things, that representations made by Rice County's current highway engineer tolled the statute of limitations. We reverse and remand for the trial court's decision on the question of whether the statute of limitations was tolled as to the respondent county, and we otherwise affirm the trial court.
Before 1992, appellants complained that the grade was too high. To appease appellants, Charles Schmidt, the county highway engineer at the time, agreed to lower the grade somewhat. In summer 1992, appellants were still not satisfied and complained to the county that the regrading would cause drainage and safety problems, and reduce the aesthetic appeal of their property.
In May 1993, appellants experienced severe flooding due to the regrading of the roads and the elimination of the previous drainage. Husting and Engstrom, Inc. had ceased doing work on the intersection by 1992. Schmidt was no longer the county engineer and had been replaced by Mitchell Rasmussen. Appellants allege that they contacted Rasmussen and he indicated to them that the county "would take care of the entire problem," including "replacement of the drainage system, eliminating the safety problem[,] and restoring the proper house and lot elevation." Appellants also allege that Rasmussen told them that he needed time to study the logistics of regrading the intersection. According to appellants, it was not until April 22, 1994, that Rasmussen informed them that the county was "not going to do anything about the matter."
Appellants served the respondents with process between November 1994 and April 1995. The trial court ruled that appellants' complaint was barred by the two-year statutes of limitations, Minn. Stat. §§ 541.07(6) and 541.051, subd. 1(a) (1994), and granted summary judgment for respondents.
The trial court properly recognized that the statutory time period begins to run from the "date that the plaintiff first suffers damage and not from the date when the last known negligent act occurs." Capitol Supply Co. v. City of St. Paul, 316 N.W.2d 554, 555 (Minn. 1982). The trial court further observed that in the absence of tolling, this action would be precluded. Appellants "first suffer[ed] damage" in 1992, after the regrading of the road proved to be unsatisfactory. It was at that time that appellants complained to the county about problems regarding poor drainage, unsafe egress, and diminution in aesthetic value.
'A promise of future action * * * is enough to stop the running of the statute of limitations, without an express mention of the statute.' Here, an inference can be drawn that there was a promise of future action on which appellants relied. Therefore, a material question of fact exists whether the statute of limitations was tolled by equitable estoppel.
Id. (quoting Sohns v. Pederson 354 N.W.2d 852, 855 (Minn. App. 1984)).
Both the trial court and respondents correctly observe that respondents could have done nothing to "conceal" appellants' damages, but they fail to address the subject of Rasmussen's alleged representations. A genuine issue of material fact exists as to whether Rasmussen's representations tolled the statute of limitations with regard to respondent Rice County.
Second, appellants allege that an action on the county highway engineer's bond is essentially an action in contract and thus subject to a six-year statute of limitations for contracts. Minn. Stat. § 541.05(1) (1996) (the six-year statute of limitations for contract actions). But under section 541.05, the six-year statute of limitations applies only where "no other limitation is expressly prescribed." Id. The bond in the present case prescribes its own limitations period, requiring that actions be "brought within two years from the date you discover the loss." Furthermore, Minn. Stat. § 541.07(6) is also applicable, notwithstanding appellants' claim that theirs is an action on the bond, as appellants' claim arises from "damages caused by * * * a change in the originally established [street] grade."
Finally, appellants allege that the county's road alteration constituted inverse condemnation and that appellants' claim is not subject to the two-year statute of limitations. Although appellants attempt to recharacterize their claim, it essentially remains one for "damages caused by . . . a change in the originally established [street] grade," and it is time-barred by section 541.07(6).
Affirmed in part, reversed in part, and remanded.
[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.